Reframing Patent Remedies

Abstract

The strength of the patent system is waning. The Supreme Court recently opened the door for dramatic change by rejecting the long- standing presumption that a permanent injunction should issue upon the adjudication of a valid and infringed patent. Federal courts have since refashioned patent remedies to favor monetary liability for patent infringement, resulting in the restructuring of substantive rights for certain classes of patent holders. In particular, some patent holders have nearly lost their right to require consent prior to the use of their patented technology. This is a troubling development. If a patent holder is unable to enforce its right to exclude, there is little preventing an interested user from acting unilaterally. Simply, the interested user will take what it wants without first seeking permission from the patent holder.

In this Article, I argue that patent law should look to the law of trespass to regain the strength of its property roots as well as a predict- able framework for the occasions that merit a switch from a property rule to a liability rule. Under the proposed framework, the vast majority of patent holders will reestablish their right to exclude infringers. However, in the event that a patent holder abuses its monopolistic leverage to unreasonably cause harm to the public, an incomplete privilege will extend to the infringer. This incomplete privilege will function the same way a defense of necessity does in trespass, allowing the infringer access to the patented technology without the ordinary threat of a penalty. Permitting the infringer a limited amount of time to design around the patented technology or come up with alternative technology will further innovation, as well as refocus courts on how the public is affected by the gain or loss of the patented technology. This recognition of the public’s interest while still valuing a patent holder’s right to exclude will reinvigorate the current patent system.